New Rulemaking Creates Uncertainty for Model Aircraft Flyers

Editor’s note: The FAA has since confirmed Loretta Alkalay’s interpretation. See: Attention, Hobby Flyers: Come Monday Some Of You May Need An FAA Drone Pilot Certificate. Yes, Really., John Goglia, Forbes, August 24, 2016.


 

With all the media attention focused on the new commercial small UAS rules finally issued by the FAA last week, scant attention has been paid to the changes made by the same rulemaking effort to hobby or recreational flying regulations. But the changes are significant. And worrisome.

The FAA has added model aircraft flying requirements to Part 101 of the Federal Aviation Regulations, adding recreational drone flying to already existing rules for moored balloons, kites and so on. The new regulations basically incorporate statutory language from Section 336 of the FAA Reauthorization and Modernization Act of 2012. But the incorporation is not a simple transfer of statutory requirements to regulatory form. That is because the statutory language of FMRA Section 336 was never directed at model aircraft flyers but at the FAA: “…the [FAA] may not promulgate any rule or regulation regarding a model aircraft…if”, the statute then lists the very requirements that have now been made regulatory. So a requirement that previously only applied to the FAA has been made a regulatory requirement binding on model aircraft flyers.

I would argue that this new rule — disguised as a reiteration of a Congressional mandate — in fact violates the proscription on promulgating new rules. But the likelihood of someone challenging this rule is remote. This means that model aircraft flyers are considered to be operating under Part 101 — instead of Part 107 with its requirement for a remote pilot certificate — only if they can meet each and every one of the specific requirements that Congress enumerated as prohibiting FAA rulemaking:

(1) the aircraft is flown strictly for hobby or recreational use;

(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization;

(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

Failing to meet anyone of these requirements, even unintentionally, could expose a hobby flyer to FAA penalties for violating Part 107. Yes, that’s correct. By FAA’s enforcement reasoning, if you don’t meet a Part 101 requirement you will be deemed to be required to operate under Part 107 – which if you happen not to hold a Part 107 certificate or meet the other Part 107 requirements, will subject you to an $1100 per regulation per flight civil penalty.

One concern I have is how exactly do you know whether you’re flying “in accordance with a community based set of safety guidelines” or “within the programming of a community-based organization”? Everyone assumes the AMA fits the CBO definition but the problem is there is no CBO definition. And what if you don’t want to be an AMA member and belong to a different drone group?

The FAA states in the rule’s preamble that a definition of a CBO is beyond the scope of this rulemaking. So that leaves all us hobby flyers uncertain as to whether we will be able to continue to fly our model aircraft as hobby flyers once the new Part 101 and 107 rules go into effect in August.

Leaked: Latest Summary of Part 107

I obtained a copy of the May 2016 version of the FAA’s “Summary of Major Provisions Under 14 CFR 107,” which reveals some changes that have been made to the originally proposed NPRM. Note that this is a May 2016 Summary, and that there might have been further changes made to the NPRM since the publication date of this document.

  • The minimum age for a Remote Pilot in Command is now 16-years-old;
  • The maximum altitude has been changed to 400 feet AGL;
  • There is a read, speak, write and understand English requirement; and
  • Current Part 61 manned aircraft certificate holders will only have to take and pass an online test (see screenshot below).

Current-Pilots-Online-ExamThe prior (February 2015) version of this Summary is posted publicly online here.

Don’t bother with a 333. Wait for Part 107.

At this writing, the FAA has granted over 5,000 Section 333 Exemptions, and over 4,000 petitions sit in a queue, awaiting the FAA’s “careful inspection,” which amount to little more than “rubber stamping.” After all, the only requirements for being granted a 333 is that you submit the proper paperwork and have a pulse. If you are currently awaiting your grant, you’ll get it — eventually. It takes months and months but everyone is granted one. Remember, I even got one for a paper airplane

However, once you receive your grant, will you be able to use it? Remember, the grantee can be anyone (or any company). But the person who actually flies the drone must be a licensed manned aircraft pilot, and they must be current. Does this describe you? If so, you yourself may legally fly commercially under your 333. If not, you must find (and presumably pay) a licensed and current manned aircraft pilot to fly your drone for you.

Even then, you’ll likely not benefit from it, since the myriad of onerous conditions that accompany 333s make it completely impractical — indeed nearly impossible — to operate a drone commercially. Even the FAA’s own NPRM suggests that many of the 333 conditions are entirely unnecessary. Its proposed Part 107 presents far fewer barriers to fly commercially. Unlike a 333, Part 107 proposes no pilot license or medical certificate requirement, no spotter requirement, no 500 buffer from any structure requirement and no NOTAM requirement.

Moreover, despite its claim of illegality, the FAA has never attempted to enforce against anyone solely for operating a drone commercially without a 333. Jason Koebler of Motherboard FOIA’ed all of the FAA’s enforcement actions, and they reveal the agency has never initiated a single enforcement action based solely upon commercial operation. Instead each was based on an alleged violation of some existing FAR, mostly FAR 91.13 (careless/reckless operation). Why isn’t the FAA enforcing against something it claims is illegal? They know there is no legal basis for that claim, and that they will lose.

So why bother getting a 333 now? You’re better off waiting until Part 107 is final. It might not be perfect, but it’s far better than a 333, and it’s likely to become final well before you ever see your 333 granted. In the interim, it appears that as long as you operate safely and responsibly — meaning don’t violate FAR 91.13 — you may fly for pleasure or for profit without the threat of FAA enforcement action.

As always, nothing I write is intended to be, and should not be considered legal advice.